The Bishop and the Cathedral: Visiting his Seat
by Philip Jones
The Cathedrals Measure 1999 not only denies the bishop membership of the chapter, but even membership of the two new authorities created by the Measure, the college of canons and the cathedral council. By keeping the bishop at one remove from the cathedral, the Measure preserves a pattern of cathedral governance that has been apparent since late mediaeval times (an indication of its conservatism).
However, the 1999 Measure acknowledges that the cathedral is ‘the seat of the bishop’ (s.1). (It is well known that a cathedral is so called because it contains the bishop’s cathedra or chair of office.) It guarantees the bishop’s right to exercise his ministry in the cathedral, including holding ordinations and synods, and ‘for other diocesan occasions and purposes’ (s.6(1)). The 1999 Measure also follows the earlier Cathedrals Measures in providing that the bishop is ex officio visitor of his cathedral (s.6).
As visitor, the bishop has the quasi-judicial function of determining any question of the cathedral’s constitution and statutes. He may hold a visitation of the cathedral ‘when he considers it desirable or necessary to do so’, or when requested by the cathedral council or the chapter.
During the visitation, the bishop may give directions to the chapter, or to any individual who works at the cathedral, so as to ‘better serve the due observance of the constitution and statutes’. These directions correspond to the ‘Charge’ traditionally delivered at a visitation of parishes. Again, the visitor’s function is quasi-judicial, to ensure proper observance of the cathedral’s laws.
The connection between the bishop’s function as visitor of his cathedral and as ecclesiastical ordinary was discussed in R v Dean and Chapter of Chester (1850) 117 English Reports 553. A sacked cathedral chorister applied to the secular court for an order compelling the dean and chapter to reinstate him.
Chester Cathedral was founded at the Reformation by letters patent of Henry VIII. The letters patent included statutes by which the Cathedral foundation was to be governed. The Bishop of Chester was appointed visitor of the foundation.
The secular court therefore refused the chorister’s application. It held that his remedy was to appeal his dismissal to the Bishop qua visitor. The office of visitor is a lay office, whereas that of ordinary is ecclesiastical. The office of a cathedral visitor is not materially different from that of a visitor of a secular foundation. The visitor is
‘appointed to superintend the due execution of the [cathedral] statutes … by the letters patent the powers of the Bishop of Chester are not confined to cases in which he would have jurisdiction as ordinary … he is constituted a special visitor to see that the statutes are enforced’ (pp.555-6).
This made the point that, if Henry VIII had not appointed the Bishop visitor of the Cathedral, the Bishop would not, or at least may not, have had jurisdiction to investigate the chorister’s sacking. The appointment and dismissal of choristers were regulated by Henry VIII’s statutes, not by the general ecclesiastical law. The Bishop’s ordinary authority, by contrast, was a common law authority which did not extend to the special statutes.
However, in Boyd v Phillpotts (1874) 4 Admiralty and Ecclesiastical 297, Sir Robert Phillimore doubted that the status of visitor added much to the bishop’s ordinary authority over his cathedral: ‘It is the ordinary episcopal authority with which [the Bishop] is clothed on [cathedral visitations] and not the spiritual authority which belongs only to the visitor of a college or private foundation’ (p.335).
Phillimore also drew a distinction between the bishop’s visitorial status and that of a secular visitor by holding that the Court of the Arches had jurisdiction to hear an appeal from the bishop’s visitation order. As he pointed out, there is no appeal from the decision of a secular visitor.
The Privy Council agreed with Phillimore on these points. Lord Hatherly cited Burn’s dictum that ‘all deans and chapters are subject to the visitation of the bishop jure ordinario and of the Archbishop … jure metropolitico’ (Phillpotts v Boyd (1875) Law Reports 6 Privy Council 435). It should be remembered that Phillpotts was concerned with the governance of Exeter Cathedral which, unlike Chester, is a pre-Reformation foundation. However, the case makes no distinction between cathedrals of the ‘old’ and ‘new’ foundations.
It could be argued that the Cathedrals Measure 1999 has established something of a classic separation of powers in the governance of cathedrals. The cathedral council is the legislature of the cathedral, the chapter is its executive and the bishop its judiciary. However, the bishop’s status as visitor indicates another confusion about the identity and function of cathedrals which the 1999 Measure fails to address. If the cathedral is the bishop’s own church, his ‘seat’, then it may be somewhat absurd that he should also be its ‘visitor’.